FREE ILLINOIS DUI CASE EVALUATION

Field Sobriety Testing in Illinois

The first thing to know about roadside testing is that when you are stopped by police, you do not have to do the tests! You can refuse to perform these tests and not be given a separate ticket for your refusal.

Unfortunately, police officers are not required to tell you that you do not have to perform these “tests”.

The current state of the law is that you do not have to be read your Miranda rights prior to performing the tests, even though the very tests that you do on the roadside are going to be used to try to convict you in court.

The State can prove you guilty of DUI in two ways: (1) if your blood/breath alcohol concentration is equal to or greater than 0.08%, or (2) if your ability to drive a vehicle is impaired due to drinking alcohol or taking certain drugs.

The first method has nothing to do with the field sobriety tests and/or whether you were impaired. It is simply a matter of the State proving you were driving with a BAC above the legal limit.

If you are successful in excluding BAC results at trial, or in showing those results were unreliable, you still have to face the charge that your ability to drive a vehicle was impaired. The strongest evidence that the State has to prove you guilty on this charge is usually the field sobriety tests. Therefore, the reliability and validity of the roadside sobriety tests given to you just before your arrest becomes very important.

The actual tests that are given to you vary in kind.

Tests such as holding your head back with your eyes closed, or bending over at the waist with your arms hanging in front of you, are tests that are designed to make you “fail”. These tests induce swaying. That is exactly what they are supposed to do.

Counting on your fingers in a complicated pattern, touching your nose with your arms extended, and many other tests can be used by the officer during the field testing. There are no set rules to these tests, other than what the officer tells you, and part of what you are being tested on is how you follow instructions.

One of the most common “tests” is reciting the alphabet. Surprisingly, many sober people cannot accurately recite the ABC’s, or get confused or hung-up when reciting them.

The tests I have mentioned above are infrequently used in Illinois and can be challenged because they have never been scientifically validated as indicators of impairment and/or a specific BAC.

However, there are three tests that have been scientifically validated, and if administered in a prescribed manner, may be reliable indicators that a person’s BAC (breath/blood alcohol content) is 0.08% or above. These exercises were validated by the National Highway Traffic Safety Administration (NHTSA). These are the three tests that most Illinois police departments utilize.

The first of these tests is the One Leg Stand. If administered properly, the one leg stand has a 65% reliability of predicting that a person’s BAC is above the legal limit. However, all of the proper instructions must be given to you for the test to be reliable. You must be told the following, and the officer must demonstrate as he is instructing you:

1. Stand with your feet together and your arms at your side.
2. Keep that position until you are told to begin.
3. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.
4. When told to start, raise either leg approximately 6 inches off the ground with your foot pointed out.
5. Keep both legs straight, arms at side.
6. Count 1,001, 1,002 etc. until told to stop.
7. Keep your arms at side and keep watching raised foot.
8. The officer must again ask if you understand the instructions and receive an acknowledgement from you that you do.
9. The officer will then start the test.
10. The test can last no more than 30 seconds of actual time.

If you exhibit two or more decision points, your performance would be deemed unsatisfactory. Additionally, if you put your foot down three or more times, you are considered to have reached a “decision point” on the testing.

The second standardized test is the Walk and Turn Test. If administered properly, the walk and turn has a 68% reliability of predicting that a person’s BAC is above the legal limit. However, again, all of the proper instructions must be given to you for the test to be reliable. You must be told the following, and the officer must demonstrate as he is instructing you:

1. Place your left foot on the line (a marked line should be used).
2. Place your right foot on the line ahead of your left foot, with the heel of your right foot against toe of your left foot.
3. Keep your arms to your side.
4. Keep this position until you are told to begin.
5. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.
6. When told to start, take 9 heel-to-toe steps, turn, and take 9 heel-to-toe steps back.
7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot.
8. While walking, keep arms at side, watch feet at all times, and count steps out loud.
9. Once you start, don't stop until test is completed.
10. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.
11. Begin the test and count first step from the heel-to-toe as "one".

There are eight decision points for the Walk and Turn test:

1. Cannot keep balance while listening to instructions
2. Starting before instructions are finished
3. Stopping while walking
4. Did not touch heel-to-toe (more than 1/2 inch gap on any step)
5. Stepped off line
6. Used arms for balance
7. Improper turn
8. Incorrect number of steps

If you exhibit two or more decision points, your performance would be deemed unsatisfactory.

The third validated test is the Horizontal Gaze Nystagmus (HGN)

If administered properly, the Horizontal Gaze Nystagmus (sometimes referred to as the “eye twitch”) test has a 77% reliability of predicting that a persons BAC is above the legal limit.

This test is very controversial and there is no consensus amongst Illinois courts regarding the admissibility and validity of this exercise. Generally speaking, most courts will permit evidence of the results of this exercise to be introduced by the State, but only as evidence of CONSUMPTION (not impairment) of alcohol. However, it is clear that the HGN may NOT be used to establish that a persons BAC was at or above a certain level.

As such, this exercise is usually of limited value to the State because impairment and/or a specific BAC (not merely alcohol consumption) is the issue in a DUI case.

Nystagmus refers to a naturally occurring phenomenon involving involuntary jerking of the eyes. Alcohol and certain drugs do not cause nystagmus, but may merely exaggerate or magnify it.

It is important to note that there are many “other” causes of nystagmus. Among them are:

1) Problems with the inner ear labyrinth.

2) Irrigating the ears with warm or cold water.

3) Influenza.

4) Streptococcus infection.

5) Vertigo.

6) Measles.

7) Syphilis.

8) Brain hemorrhage.

9) Epilepsy.

10) Hypertension.

11) Motion sickness.

12) Sunstroke.

13) Eye strain.

14) Eye muscle fatigue.

15) Glaucoma.

16) Changes in atmospheric pressure.

17) Consumption of excessive amounts of caffeine.

18) Excessive exposure to nicotine.

19) Aspirin.

20) Circadian rhythms.

21) Acute head trauma.

22) Chronic head trauma.

23) Some prescription drugs, tranquilizers, or pain or anti-convulsant medications.

24) Barbiturates.

25) Disorders of the vestibular apparatus and brain stem.

26) Cerebellum dysfunction.

27) Heredity.

28) Diet.

29) Toxins.

30) Exposure to solvents.

31) Extreme chilling.

32) Eye muscle imbalance.

33) Lesions.

34) Continuous movement of the visual field past the eyes.

35) Antihistamine use.

This exercise essentially involves the officer placing a stimulus (usually his finger or pen) approximately 12 inches from your eyes and moving it horizontally across the front of your face. The officer is looking for three clues in each eye:

1) Lack of smooth pursuit as the eyes follow the stimulus across a horizontal plane.

2) Distinct nystagmus (jerking) when the eyes are held at maximum deviation, or at their lateral extreme.

3) Onset of nystagmus (jerking) prior to the stimulus reaching 45 degrees from center. Some white of the eye must be showing on the side closest to the ear.

If a person exhibits 4 or more clues in total, that shall be considered unsatisfactory performance.

In order for this test to be administered properly, the officer first must perform two preliminary “passes” with the stimulus to check for equal tracking ability in the eyes and equal pupil size. If the eyes don’t track together, it could indicate a possible medical disorder, injury, or blindness. If the pupil sizes are unequal, it may indicate a head injury. In either case, this exercise should be discontinued. Additionally, contacts should be removed before a person attempts the HGN.

The HGN must be performed in a precise manner and at precise speed. If the officer fails to do so, the validity of this exercise is compromised.

The validity of the field sobriety exercises is dependent on the correct administration scoring, and interpretation of the tests by the officer. The following language is found in the National Highway and Traffic Safety Administration (NHTSA) Standardized Field Sobriety Test Student Manual:

Additionally, the following language is found in the NHTSA DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING INSTRUCTOR MANUAL:

THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBILE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THIS COURSE.

Field sobriety tests can be challenged in many ways, even in cases where the officer properly instructed you on how to perform. An examination of the circumstances regarding the field sobriety tests given to you may give rise to a successful challenge.

Did the officer ask you if you had any injuries that would prevent you from doing the testing, or that would cause you any problems while doing the testing? Any injury to your back, legs, knees, or feet, could cause problems standing on one leg or walking a line, and as a result, even if you performed the testing, the validity and/or reliability of the testing would be compromised.

Do you have balancing problems, middle ear problems, vertigo, or anything else that would cause you to have difficulty with balancing while performing these tests?

Are you 50 pounds overweight? Are you 65 years of age or older? In either case, the officer should not have administered balancing and walking exercises to you.

If you were wearing heels two-inch or higher, you should have been given the opportunity to take off your shoes. Did your footwear compromise your ability to perform the walking and balancing exercises?

The testing should have been done on a well-lit, dry, flat, hard, non-slippery surface with plenty of room to perform the testing. The side of the road is often sloped for water run-off, with debris and broken pavement. This would affect the testing. Did the condition of the surface where you performed the field sobriety tests affect your performance?

What were the lighting conditions like where you performed the tests? Were you facing the officer’s vehicles emergency lights? Were you facing the lights of oncoming traffic? Did wind gusts and/or the headlights from passing cars pose problems for you? These factors could affect your performance on field sobriety tests.

Of course, any test can be used by an officer on the roadside. However, the testing must be fair. It is up to your attorney to challenge the validity and reliability of this testing.

If you have any questions about the tests performed on you during your arrest, or if you would like us to analyze your case, please contact us today. We look forward to hearing from you.

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